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RUBY:

From Schwartz Media I’m Ruby Jones this is 7am.

In the final days of a Government, before an election is called, last-minute appointments are often made.

Last week, the Morrison government made 19 of those, to the Administrative Appeals Tribunal.

Half of the people appointed have ties to the Liberal Party or to conservative politics - sparking concerns about whether they’re qualified and whether the process is impartial.

Today, senior Reporter for The Saturday Paper, Rick Morton on the Administrative Appeals Tribunal and the case of one young man, who never got his chance at redress.

It’s Wednesday April 13.

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RUBY:

Rick, one thing the Morrison government did in the last week before it called the election was make some appointments to the Administrative Appeals Tribunal, so why are those appointments so important for us to take a closer look at?

RICK:

So The AAT is there to check the decision making of the government to make sure that those people who made the decisions have actually made them correctly.

Archival Tape -- AAT ad:

“The decisions the AAT most commonly reviews relate to child support, family assistance and Social Security…”

RICK:

That’s the entire job of the tribunal. In many cases, to some people, the last avenue, they have to seek redress from decisions that they think have been made in error

Archival Tape -- AAT ad:

“visas, the NDIS taxation, veterans entitlements and workers compensation for employees covered by Commonwealth laws”

RICK:

So it’s actually really important.

Archival Tape -- AAT ad:

“And we aim to make our review process accessible, fair, just economical, informal and quick.”

RICK:

And that can be really vulnerable. People in vulnerable positions. And one particularly shameful example I think of, you know, the failing of this system and the way people are forced to go into this system is the story of Toby Tyne…

RUBY:

OK, so it sounds like it's an important kind of place of last resort for people who who need help. Is that the case with Toby? Can you tell me about him and what happened to him?

RICK:

Yeah, Toby Tyne was the first person in the world diagnosed with spondylitis ocular syndrome, this rare genetic disorder, and his brother, Hunter, his younger brother, was the second.

Archival Tape -- Rick Morton:

“So Tobe, what are your days like at the moment?”

Archival Tape -- Toby Tyne:

“Ah, most of my days are very painful”

Archival Tape -- Rick Morton:

“What kind of pain, forgive me for asking, what kind of pain”

Archival Tape -- Toby Tyne:

“Yeah it’s in my bones”

RICK:

And there are many kind of symptoms of this syndrome, but particularly for him, it made his bones so brittle, so fragile that he could barely move, sometimes breathing the wrong way could shatter a bone or break a bone.

Archival Tape -- Rick Morton:

“When was the last time you actually left your bed? Has it been a year?”

Archival Tape -- Toby Tyne:

“Yeah. Last time I left bed was when I had to go to hospital …”

RICK:

And when I spoke to him, he had been declared terminal by his doctors, so he knew that he had a finite lifespan.

Archival Tape -- Rick Morton:

“Forgive me for asking Toby, but when they say you’ve been made palliative, do you know roughly what that means, like how long?”

Archival Tape -- Toby Tyne:

“They told me I’m terminal but I could have years left”

Archival Tape -- Rick Morton:

“But your condition isn’t getting better”

Archival Tape -- Toby Tyne:

“No my condition is getting worse”

RICK:

And in fact, he had spent time before I spoke to him last year planning his own funeral.

Archival Tape -- Angela:

“Most people with. A disability don't have someone to advocate for them. So many people that just out there unseen.”

RICK:

And because of his condition his mother, Angela Tyne, had spent quite a lot of time with his disability advocates. With Toby, he still had a voice of his own, trying to get funding

Archival Tape -- Angela:

“It’s literally designed, I’m sure, to send you friggin batshit crazy, or to turn you off it…”

RICK:

Not long after I spoke to him the first time his entire NDIS funding package was basically cut in half.

Archival Tape -- Angela:

“Seriously, I was absolutely Gobsmacked.”

RICK:

And Angela is a single mother looking after Toby, 24 seven. He needed 24 seven care. He could not leave his bed. They were thinking home modification said that at least he could get some hydrotherapy in the pool that was located there because there was nowhere else in the region that they could do it. It was the only way that he could actually, you know, use his body and keep his muscles and his conditioning in check. And because of Covid, that made things doubly difficult. But the NDIS refused. The agency in charge of it refused.

Archival Tape -- Angela:

“I want to be Toby’s mum. For him to have to have me do his care, it just takes away all his dignity.”

RICK:

And so eventually, to get that end and more nursing support and personal care support, they had to appeal the internal the decision of the NDIA, the agency internally. And then they had to take it to the Administrative Appeals Tribunal, which is where they were at when I when I last spoke to them last year.

RUBY:

OK, so Toby, who is bedridden with this terminal illness, the funding for his care has been halved and he's unable to get the support that he needs. So he he takes this to the tribunal. What happens when he gets there?

RICK:

The same thing that happens to a lot of people under the NDIS, it got stuck in the tribunal. So they had been waiting since I spoke to them in the middle of last year. And they were still waiting when I got a call a couple of weeks ago now from Toby's mother, Angela Time, and Angela is actually calling me to say that Toby had passed away, that he died at the time. It was a couple of weeks ago, and she spoke to me. So it's more than a month ago now. And she kind of obviously had to sit on that information. She was grieving. She was traumatised.

And so automatically what that means is that the case is gone. Toby has a younger brother called Hunter, who has the same condition that he had. And Hunter’s progression will be similar to Toby. So Angela didn't want to just let that be the end of it. She said, I really want I want people to know that this is the process that many people are forced to go into. And Toby Toby died before he got any sense of restitution or justice.

And it's not the AAT’s fault. The tribunal is trying to do its best to work through these things, but it's had its funding cut in the most recent government budget. So as the caseload growth to historic highs, it's doing, it's working its way through them with less money than it had in the year before.

RUBY:

Mm so case loads, a growing funding is being cut, and now there's these new appointments.

Right so the tribunal has had its funding cut, it's taking so long to provide decisions - to the extent that someone like Toby has actually died waiting, waiting to get a ruling on their case. And it’s in this context that all these new appointments are made to the tribunal? So can you tell me about that?

RICK:

Yeah, that's that's exactly right.

Archival Tape -- Park:

“Well it’s that magical twilight right before an election is called where, let’s just say, magical things can happen - especially if you’re a friend of the Governement.”

RICK:

This coalition government, they had some appointments that needed to be made to the Administrative Appeals Tribunal or the AAT.

Archival Tape -- Park:

“Former Liberal MPs, staff members and party donors are amongst those appointed to the Administrative Appeals Tribunal in what Labor is branding a jobs for mates exercise.”

RICK:

And in the dying days of this government, that's exactly what we got.

They've selected 19 new members, including a deputy president and some senior members for the AAT, half of whom have some ties to the Liberal Party or conservative politics.

Archival Tape -- Park:

“So are you saying that party affiliation automatically should disqualify somebody?”

Archival Tape -- Dreyfus:

“No, I'm not. I'm saying it shouldn't be the only qualification ….”

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RUBY:

Rick, we've been talking about the Administrative Appeals Tribunal, the A8, and the people who can find themselves before that tribunal, people like Toby, who passed away before he was able to get any help. The reason we're talking about it, though today is because the makeup of the tribunal has just changed. So the Morrison government has appointed 19 new people last week. Can you tell me a bit more about who those 19 people are?

RICK:

I absolutely can. A lot of them were Liberal Party veterans and apparatchiks.

So, for example, let's take Cheryl Cartwright says she's a former chief of staff to the then Nationals MP Warren Truss and the current chief executive officer of the Australian Pipeline and Gas Association, and she was voted onto the tribunal.

Archival Tape -- Michaelia Cash:

“So again, someone who is eminently qualified”

Archival Tape -- Carr:

“She’d be legally qualified aswell?”

Archival Tape -- Michaelia Cash:

“I don’t believe she is legally qualified”

RICK:

Michealia Cash said that… by virtue of her being the CEO of the Australian Pipeline and Gas Association

Archival Tape -- Michaelia Cash:

“ah, she is someone who is able to work under pressure,”

RICK:

I don't know whether Michaelia Cash, the Attorney-General, is trying to make some kind of reference to the fact that gas is pumped under pressure, but there you go.

Archival Tape -- Michaelia Cash:

“So again, someone who is eminently qualified for the role”

Archival Tape -- Carr:

“Was she on the expressions of interest register…”

Archival Tape -- Michaelia Cash:

“I’d need to take that on notice for your Senator Carr”

RICK:

And we've got current and coalition advisers who have been selected for the tribunal and former MPs, including two former WA West Australian Liberal MPs from the state government there, including the former attorney general Michael Mission, Michaelia Cash, who the WA MP herself in the Liberal Party over there. So it's quite a few links floating around.

Now, just for reference, new appointees can earn two hundred and forty nine thousand dollars a year, and a senior member of the eight can earn three hundred ninety one thousand dollars per year. Michael Meechan, who was appointed as deputy president, will get just under half a million dollars each year for that for that job.

RUBY:

Wow, OK. And there's no doubt that the people that you're telling me about Rick, these are high profile, high powered political people. So what is the, I suppose, the vetting process for them to get these appointments? Is there a selection criteria? How exactly does it work?

RICK:

There is a protocol, and the protocol says essentially you can do whatever you want. So what happens is that the president of the Administrative Appeals Tribunal can make a list of recommendations to the Attorney General. What can then also happen is that they can advertise publicly and say, we've got an expression of interest register. If you're a lawyer or someone else who you know you think you're suitably qualified to put your name down. But again, not every name that was on that expression of interest register was chosen, and there were names that were not on that register that were hand-picked by the attorney general.

Archival Tape -- Michaelia Cash:

“Point 7 clearly states the ‘Attorney-General is not limited to candidates recommended by the President of the AAT”

RICK:

And we know that because she said it, Michaelia Cash said it in the Senate

Archival Tape -- Michaelia Cash:

“and may choose to recommend to Cabinet a candidate for a position that has not been suggested by the president of the AAT or is not on the register”

RICK:

She said It's right there in the protocol, they don’t have to be on any of those lists

Archival Tape -- Michaelia Cash:

“I challenge you to point out which one of those 19 new appointments are not qualified.” Cash said 15 of the new appointments are “legally qualified, including eight barristers.”

RICK:

Those names then selected by the attorney general go to cabinet and they're signed off. And that's exactly what happened in this process. So there is no vetting process.

Now, many of them, but not all of them have legal experience. But Ian Callinan, who was commissioned to review the performance of the AAT in 2018. He was excoriatinging in his review of the tribunal, saying that no person who should be appointed to any opening or reappointed to the tribunal if they do not have a legal degree which is really just a coded way of saying stop bringing political hacks in to do this work.

Now Michaelia Cash says, Well, if you've worked in government, that is qualification in and of itself because the tribunal is set to go over government decision making.

So the government kind of has been appointing people to the tribunal since 2013. Labour does it too, and there are currently now about 320 members of the tribunal. But the workloads have been increasing massively and the Callinan review found it. You know, part of the reason for that is that there's not enough members and they're not appropriately qualified and no amount of training just as Callinan said no amount of training can make you perform that job impartially and with trust people. You know, the parties in proceedings have the. He did not have some faith in that institution and that review has not been responded to still.

RUBY:

What do you think the effect is likely to be of these appointments, Rick? And when I ask that I'm asking very specifically of the effect on the people who actually are the ones coming to the tribunal saying that they have a problem with a government department they're interacting with, and they need help… and they need it quickly.

RICK:

Yeah, look, I mean, we need more members of the tribunal. That was that's a clear fact. And so the fact that there are new appointments is a good thing as a global kind of thought. But it's the perceived politicisation of the tribunal. That is the problem because people need to trust the system right? And there is nowhere else you have to go to the tribunal first, in most cases before you can get any kind of redress or, you know, clean set of eyes on a decision.

And the further down this road we go, the further we kind of alienate people who are just there to get a second set of eyes on the government decisions that. Affect them, whether it's welfare support, whether it's disability support, migration matters, all of those things. and you know, you know, And really, what that means after all of the political games are over is that people will not get the decisions made in a timely manner that they need them to be made in.

Archival Tape -- Rick Morton:

“What like, what do you think when you have to deal with this bureaucracy and them telling, Oh no, no, you don't need it all, we're going to wait six months.”

Archival Tape -- Toby Tyne:

“My human rights aren't met”

Archival Tape -- Rick Morton:

“It must be frustrating.”

Archival Tape -- Toby Tyne:

“Yes, it is. And I feel like because I've got a disability, I mean, as much as people without a disability.”

Archival Tape -- Rick Morton:

“Yeah.”

RICK:

Toby times the perfect example of that. He died when he died while he was waiting for his very legitimate claim to be going through the tribunal system, and it didn't even make it to mediation.

RUBY:

Rick, thank you so much for your time today.

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RUBY:

Also in the news today -

Pakistan's parliament has elected Shehbaz Sharif [Shaah-bazz Shaa-reef] as Prime Minister after a week-long constitutional crisis, which came to a head after his predecessor Imran Khan lost a no-confidence vote on Sunday.

The new Prime Minister is the younger brother of three-time prime minister Nawaz [Naa-waz] Sharif.

And

On Tuesday, Shanghai recorded over 22,000 cases of Covid-19 in a single day.

China’s largest city, with a population of over 25 million has been under an extended lockdown for several weeks.

Earlier this week, local officials announced residents in areas where no cases had been detected for 14 days, could leave their homes, as long as they follow health protocols.

I’m Ruby Jones, this is 7am see you tomorrow.